Mikaila Hernandez
Mikaila Hernandez
Law Clerk, San Diego, CA
Formerly: Server, Front Desk
Education
  • B.S., Radio-Television-Film, University of Texas at Austin.

I grew up in the borderlands of El Paso, TX, and Cd. Juárez, MX. Seeing both sides helped me recognize early on that divisions are manufactured and carry many opportunities to be bridged and reshaped. Coming to the legal field has helped me serve my community by facilitating common understanding among people with different viewpoints and making complicated legal concepts accessible to those who have otherwise been left out of the conversation.

At Stokes Wagner, I get to work with and learn from experienced professionals who value every team member’s contributions. We utilize the collective knowledge of the team to form the most effective legal strategy for our clients. Although legal research and writing are my strong suits, my favorite part of the job is breaking down complex legal requirements for our clients so that they can provide the best service and hospitality to their guests and employees. I used to work in a hotel, a spa, and restaurants, so working directly with clients in the hospitality field is familiar and enjoyable.

Outside of the firm, I help build community support systems through mutual aid, activism, and education. When I’m not studying or working, I love hiking in the mountains, surfing in the ocean with my husband, or talking to the hummingbirds and butterflies in my garden. My 12-year-old dog and 3-year-old cat both have mommy attachment issues, which I secretly love.

Effective January 1, 2022, a new law exempts certain unionized janitorial employees from suing under the Private Attorneys General Act of 2004 (“PAGA”). On September 27, 2021, Governor Newsom signed SB 646 into law which specifies that unionized janitorial workers covered by a valid CBA will no longer be allowed to bring civil actions under PAGA if the CBA expressly provides for:

  •	the wages, hours of work, and working conditions of employees;
  •	premium wage rates for all overtime hours worked;
  •	grievance and binding arbitration procedures that authorizes the arbitrator to award otherwise available 
    remedies for Labor Code violations; and
  •	authorization of the labor union to pursue a grievance on behalf of employees.

A “janitorial employee” is defined as “an employee whose primary duties are to clean and keep in an orderly condition commercial working areas and washrooms, or the premises of an office, multiunit residential facility, industrial facility, health care facility, amusement park, convention center, stadium, racetrack, arena, or retail establishment.” In drafting SB 646, legislators acknowledge that PAGA is a costly and time-intensive process and want to incentivize collective bargaining and mandatory arbitration instead of enforcement by the courts.
This PAGA exemption will expire the date that the CBA expires or July 1, 2028, whichever is earlier. Importantly, SB 646 does not preclude a janitorial worker from pursuing other civil actions against the employer, including violations of the California Fair Employment and Housing Act, or other prohibitions of discrimination and harassment.

For a printable PDF of this article, Click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


On August 11, 2021, the Los Angeles City Council voted to instruct City Attorney Mike Feuer to draft an ordinance that requires customers to show proof of receiving at least one dose of the COVID-19 vaccine prior to entering indoor public spaces. The ordinance would apply to restaurants, bars, retail stores, fitness centers, spas and entertainment facilities such as stadiums, concert venues and movie theatres.

Council President Nury Martinez and Councilmember Mitch O’Farrell introduced the motion on August 4, 2021, citing data from the Los Angeles Department of Public Health that shows a near-doubling in daily hospitalization rates for COVID-19 since July and the vaccines’ effectiveness against the highly contagious delta variant. As of August 19, 2021, 73.3% of LA County residents 12 and older have been vaccinated with at least one dose.

Through the mandated vaccination policy, City Council hopes to reduce COVID-19 hospitalizations and avoid another economic shutdown. The motion requests a report on what resources would be needed to expand the VaxUpLA campaign and community outreach education programs on the vaccine. Council President Martinez introduced an amendment to the original motion that instructs the City Attorney and Chief Legislative Analyst (“CLA”) to solicit feedback from parents, teachers, and pediatricians on the best methods to protect children, including those younger than 12 years who are ineligible for the vaccine. The amendment also instructs the City Attorney to work with the CLA in considering how businesses, stakeholders, and Council Offices can best comply with the mandate. The City Attorney will present a draft ordinance to City Council after meeting with the relevant City departments.

To implement a mandated vaccine policy tailored for your business, please contact your Stokes Wagner attorney. For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


On June 17, 2021, the Cal-OSHA Board voted 5-1 to adopt its proposed revisions to its Emergency Temporary Standards (ETS), which much more closely align with the CDC guidance. That same day, Governor Gavin Newsom signed an Executive Order enabling these rules to go into effect immediately. The revised ETS, among other things, allows fully vaccinated workers to discontinue mask usage and social distancing.

What changes under the revised ETS?

  • Regardless of vaccination status, no face coverings are required outdoors (except during outbreaks).
  • Unvaccinated workers (or workers who decline to provide their vaccinated status) still need to wear masks indoors except when they are alone in a room or are eating or drinking, in which case they are still required to socially distance themselves.
  • In most settings, employers may allow fully vaccinated employees to not wear face coverings indoors but must document their vaccination status (see below for details).
  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contact with COVID-19 cases.
  • Employers must provide unvaccinated workers with N95 masks or respirators upon request.
  • Employers may not retaliate against employees who wish to continue wearing face coverings.
  • Except during outbreaks, no physical distancing or barriers are required, regardless of vaccination status.
  • Restaurants and bars may return to full capacity.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency.

What requirements from the November ETS remain the same?

  • Employers must create and maintain an effective written COVID-19 Prevention Program and response plan for cases and outbreaks.
  • Employers must provide effective employee training on the prevention plan and their rights under the ETS.
  • After potential exposures, employers must offer testing.
  • Employees may still be eligible for quarantine and exclusion pay.
  • Outbreaks must be reported to public health departments and employees.

Additional employer responsibilities during outbreaks

Outbreak (three or more COVID-19 cases within a 14-day period)

  • Make testing available at no cost on a weekly basis for employees in the exposed work areas and exclude positive cases from work until the workplace no longer qualifies as an outbreak.
  • All employees in the exposed group, regardless of vaccination status, must wear face coverings when indoors or when outdoors and less than six feet from another person.
  • Implement social distancing and barriers.

Major Outbreak (twenty or more COVID-19 cases within a 30-day period)

  • Make testing available at no cost at least twice weekly for employees in the exposed work areas and exclude positive cases from work until no new cases are detected for a 14-day period.
  • Offer respirators or N95 masks to all employees, regardless of vaccination status.
  • Implement social distancing and barriers.
  • Consider halting all or part of operations to control the virus.

Fully vaccinated employees do not need to be excluded from the workplace unless they develop symptoms, in which case they are to be excluded the same as unvaccinated employees. ETS does not require an employee to have a negative test to return to work.

Vaccination Documentation If an employer permits fully-vaccinated employees to work indoors without a face covering, it must document the vaccination status of its employees. An employee is fully vaccinated two weeks after receiving the second shot of Moderna or Pfizer vaccines or two weeks after the Johnson & Johnson vaccine.

The Department of Industrial Relations (“DIR”) has issued guidance on how to document the vaccination status of employees, providing the following three options:

  1. Employers may retain a copy of the vaccine card;
  2. Employers may inspect the vaccine card and maintain a separate record of employees who presented proof (but not retain the vaccine record itself); or
  3. Employers may permit employees to self-attest, and the employer maintains a record of who self-attests.

Employees have the right to refuse to disclose their vaccination status to an employer, in which case employers will treat them as unvaccinated. Employers must maintain these records confidentially and must have them on file for any employee who will be taking advantage of the new rules. Alternatively, employers may require all employees to wear a face covering instead of having a documentation process.

For more information and continued updates, please see the DIR’s FAQ page here. For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


On March 11, 2021, the House of Representatives passed H.R. 842. The Protecting the Right to Organize Act (“PRO Act”) would amend aspects of the National Labor Relations Act (“NLRA”) by expanding protections of employees’ rights to collectively bargain in the workplace and penalizing companies that violate those rights.

KEY PROVISIONS

  1. Redefines “employee,” “supervisor,” and “joint employer” in the NLRA to increase the number of workers eligible for union membership.
  2. Authorizes National Labor Relations Board (“NLRB”) in assessing hefty monetary penalties for companies that violate worker’s rights and establishes personal liability on directors and officers where they directed or committed the violation, established a policy leading to the violation, or had actual or constructive knowledge of the violation and failed to prevent it.
  3. Allows unions to override so-called “right to work” acts in numerous states and collect dues from those who opt out of the union.
  4. Forbids employers from interfering or influencing employees in union elections.
  5. Provides a procedure for newly certified unions to seek arbitration and mediation to settle impasses in negotiation.
  6. Legalizes “secondary” strikes and boycotts against third-party employers and contractors, currently forbidden by the NLRA.
  7. Prevents an employer from using an employee’s immigration status against them when determining terms of their employment or when seeking relief for violations of the PRO Act.
  8. Prohibits employers from permanently replacing striking workers with non-union labor.
  9. Authorizes mandatory injunctions in cases of discharge or other serious economic harm to an employee before a full investigation on the merits of the charge.
  10. Provides a private right of action to sue employers for unfair labor practices outside of NLRB jurisdiction.

SENATE CONSIDERATION The bill is likely to face a more difficult road in the Senate, where an all but certain Republican filibuster could block its passage. Democrats are exploring the budget reconciliation process as a possible avenue for provisions in the bill that have a clear budgetary impact, such as the increased penalties and fines for violations of the NLRA. This would allow at least some provisions to move through the Senate with just a simple majority. The reconciliation process can also be used to provide more funding for agency enforcement and programs aiding workers.

TAKEAWAY FOR EMPLOYERS Almost half of all non-unionized workers say they would join a union if given the opportunity. Still, less than 11% of American workers belong to a union, making this area ripe for the Biden Administration to support more pro-union changes.

Although this bill is unlikely to pass in the Senate, the changes in H.R. 842 could drastically change the relationship between employers and unions. Employers should take time to re-evaluate their labor and management relations policy to avoid the appearance of union animus in its policies and administration. Examine relationships with “joint employers” such as franchisers to determine the extent of legal exposure under the new definition and any possibility of being subject to a “secondary” strike as a third-party employer or contractor. Technical violations are subject to fines, so be sure to understand the penalties and damages scheme.

For a printable PDF, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


On September 30, 2020, California enacted SB 973, which requires large private employers to report specific pay data to the Department of Fair Employment and Housing (“DFEH”) by March 31, 2021, and annually thereafter. SB 973 is designed to identify hidden yet persistent racial and gender pay gaps that can result from unconscious biases or historical inequities. The rule allows for effective enforcement of equal pay or anti-discrimination laws. As of February 16, 2021, employers can now submit their 2020 pay data at the Pay Reporting Portal.

WHO IS REQUIRED TO REPORT? Private employers with 100 or more U.S. employees and at least one employee in California at any time during the reporting year and who are required to file an annual federal EEO-1 are required to report to DFEH.

“Employee” includes individuals on an employer’s payroll for whom employers withhold federal social security taxes, teleworking employees, part-time employees, employees working inside and outside of California, and individuals on paid and unpaid leave, including CFRA, pregnancy leave, disciplinary suspension, or any other employer approved leave of absence.

Employers select a “Snapshot Period,” which is a single pay period between October 1 and December 31 of the reporting year, to identify the employees to be reported since employees will usually change over the course of a year.

WHAT MUST BE INCLUDED IN THE REPORT? 1. Number of employees by race, ethnicity, and sex in the following ten categories: executive or senior-level officials and managers, first or mid-level officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, and service workers; 2. Number of employees by race, ethnicity, and sex whose W-2 earnings fell within each pay band established by the U.S. Bureau of Labor and Statistics; 3. Total number of hours worked by each employee counted in each pay band during the reporting year; 4. Employer’s North American Industry Classification System (“NAICS”) code.

HOW IS THE DATA TO BE REPORTED? DFEH provides a User Guide explaining how an employer should create and submit its report. Uploading an Excel or .CSV file consistent with DFEH templates is recommended, but employers may also manually enter their information using the portal’s fillable form.

WHAT ARE OTHER EMPLOYER CONSIDERATIONS? - Use the three genders California recognizes, as self-identified by the employee: female, male, and nonbinary. - Employers may request an enforcement deferral request before the March 31, 2021 deadline. - Before submitting any optional commentary with the report, be sure to consult with a Stokes Wagner attorney.

Additional information, including information for employers with multiple establishments inside and outside of California, can be found at the FAQ page.

For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


On September 8, 2020, The San Diego City Council passed two ordinances to protect vulnerable workers amidst the pandemic, effective immediately. The COVID-19 Supplemental Paid Sick Leave Ordinance requires large companies employing more than 500 workers to provide supplemental paid sick leave for employees. The COVID-19 Building Service and Hotel Worker Recall Ordinance requires commercial property businesses, hotels, and event centers to recall laid-off employees by seniority when business activity resumes and to retain employees in the event that the business changes ownership during the pandemic.

Supplemental Paid Sick Leave

The COVID-19 Supplemental Paid Sick Leave Ordinance is meant to assist those workers left without the paid sick leave benefit under the federal Emergency Paid Sick Leave Act, which exempts employers with 500 or more employees from coverage. Several employer exemptions are provided, including emergency responders, healthcare providers, global delivery services, governmental agencies, and employers that provide at least 160 hours of annual paid leave. “Covered Employers” under Section 5110(2)(b) of the federal Families First Coronavirus Response Act (“FFCRA”) are likewise excluded for purposes of this ordinance.

Full-time employees are entitled to 80 hours of paid sick leave, while part-time employees are entitled to the average number of hours they normally work over a two-week period, not to exceed $511 per day. An employee may request time off to care for themselves, a family member, or a household member for COVID-19 related reasons and may elect for intermittent increments of one-hour. An employer may not require documentation of the employee to use supplemental paid sick leave and may not retaliate against an employee for requesting or using supplemental paid sick leave.

The ordinance is in effect until December 31, 2020, unless otherwise extended by City Council, or unless the FFCRA is extended by Congress, in which case, the ordinance will remain in effect as long as the FFCRA is in effect.

Recall and Retention

The COVID-19 Building Service and Hotel Worker Recall Ordinance seeks to ensure that workers in the building service, hospitality, and travel-related industries who have been discharged, laid off, or furloughed enjoy a right to their previous jobs when business activity resumes in order to aid economic recovery and reduce the demand on city-funded social services.

Employers must offer its laid-off employees, in writing, all jobs which the employee is qualified for, with preference given to employees with the greatest length of service. A laid-off employee has 3 business days to respond to the offer. Laid-off employees include those who were laid off on or after March 4, 2020, due to a government shutdown order, lack of business, a reduction in force, or any other economic, non-disciplinary reason. The ordinance requires that laid-off employees be employed for six months or more in the 12 months preceding March 4. For event center employees, the requirement is reduced to three months or more. Laid-off employees do not include managers, supervisors, or confidential employees.

An employer is also required to maintain records pertaining to the recall requirements of each laid-off employee for at least 3 years. Employers subject to the recall ordinance are hotels with more than 200 rooms, privately-owned event centers larger than 50,000 square feet or 5,000 seats, and commercial properties with at least 25 janitorial, maintenance or security service employees.

The retention section of the ordinance applies to commercial property businesses and hotels that change ownership during the pandemic. The ordinance requires the original employer to provide the successor business employer with a list of eligible employees within 15 days of the transfer and to hire from that list for at least 6 months after the transfer. The successor employer must make offers to eligible employees for a 90-day transition period, in which employees can generally only be dismissed for cause, with some exceptions. At the end of the transition period, the employer must provide a written performance evaluation for each eligible employee and consider offering continued employment to those with satisfactory performance.

Eligible employees include those who have worked for the original employer on or after March 4, 2020, for 6 months or more, and prior to the execution of the change in ownership. Managers, supervisors, and confidential employees are ineligible.

The ordinance is in effect for 6 months unless California Assembly Bill 3216 is chaptered, in which case, it will be repealed on January 1, 2021, unless extended by resolution by City Council.

For the full text of the Supplemental Paid Sick Leave Ordinance, click here. For the full text of the Building Service and Hotel Worker Recall Ordinance, click here.

For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


Unlimited vacation policies have gained popularity in recent years, both with employees and employers. These policies allow employees can take as much time off as their responsibilities allow, and relieve employers of the administrative burden of tracking PTO accrual, use, and payout. Even more attractive to the employers is the proposition that an unlimited PTO policy avoids the requirement of paying out accrued but unused PTO at the end of employment. For traditional PTO accrual policies, earned vacation is considered wages, and Labor Code Section 227.3, requires an employer to payout earned but unused vacation time upon separation. In contrast, under unlimited PTO policies, employees do not accrue and “bank” vacation hours to use later; rather they are entrusted to take time off at their election, so long as they complete their work and perform as expected.

On April 1, 2020, a California Court of Appeal for the first time addressed unlimited PTO policies, clarifying the payout requirement under Labor Code Section 227.3. In McPherson v. EF Intercultural Foundation, Inc. three exempt employees sued their employer for unpaid vacation wages that were not paid out upon separation. The employer described its vacation policy as “unlimited,” but it was neither conveyed as unlimited to the plaintiffs, nor was it unlimited in practice. EF impliedly limited the time available for vacation approval to no more than six weeks and never formalized the “unlimited” policy in writing. This resulted in the employee plaintiffs taking less vacation time under an “unlimited” policy than other employees under a traditional accrual policy.

The court found that EF could not avoid section 227.3 by leaving its vacation policy “undefined.” Based on the particular facts of the case, section 227.3 indeed applied to EF’s purported “unlimited” paid time off policy. Simply calling a paid time off policy “unlimited” while in practice limiting the amount of vacation an employee can take does not absolve the employer of the vacation payout requirement under section 227.3. In effect, EF’s vacation policy robbed employees of their end of employment payout. It is important to note that the decision is narrowly tailored to EF’s vacation policy and does not necessarily apply to all legitimately unlimited vacation policies. Employers should examine their vacation policies in practice and in effect to determine whether their policies are legitimately unlimited. Fortunately, the court provided guidance on what may constitute a valid unlimited time off policy that does not violate section 227.3.

An unlimited paid vacation policy should:

  1. Be in writing;
  2. Clearly provide that employees’ ability to take paid time off is not a form of additional wages for services performed, but perhaps part of the employer’s promise to provide a flexible work schedule – including employees’ ability to decide when and how much time to take off;
  3. Spell out the rights and obligations of both employee and employer and the consequences of failing to schedule time off;
  4. In practice allow sufficient opportunity for employees to take time off, or work fewer hours in lieu of taking time off; and
  5. Be fairly administered so that it neither becomes a de facto “use it or lose it policy” nor results in inequities, such as where one employee works many hours, taking minimal time off, and another works fewer hours and takes more time off. While these are helpful suggestions from the Court, they likely come in dicta which is not controlling law. Nevertheless, employers using or considering using unlimited PTO policies should review their policies and consult with counsel to ensure they align with the holding in McPherson.

For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


On June 5, 2020, CAL-OSHA released non-exhaustive guidelines for reopening hotels, lodging, and short-term rentals. Reopening processes should begin no sooner than June 12, 2020, subject to local county health officer approval. Properties with large meeting venues, banquet halls, or convention centers are advised to keep those areas closed until further approval. Property managers and other rental unit owners and operators must only rent unoccupied units and cannot rent rooms or spaces within an occupied residence at this time.

It is critical that employers have a worksite specific plan in place not only to prevent infection but also to identify potential cases of COVID-19 in order to intervene and halt the spread of the virus quickly. CAL-OSHA offers a broad range of recommendations:

  1. Train employees on the proper use of face coverings and ensure they are being worn when they are on the property and during the temperature screening prior to an employee’s shift.
  2. Allow employees to perform their own temperature checks at home.
  3. Provide PPE rather than requiring employees to provide their own.
  4. Prohibit employees from sharing PPE.
  5. Service rooms only when guests are not present.
  6. Allow more time for attendants to clean rooms without any loss of pay to account for the additional necessary steps to clean and disinfect.
  7. Perform baggage deliveries when guests are not in their rooms, whenever possible.
  8. Circulate air within guest rooms and throughout the property as much as possible via open windows or air filtration fans.
  9. Screen guests upon arrival and ask them to wear a face covering. Face coverings should be provided to guests who arrive without one.
  10. Use vacuums equipped with HEPA filters rather than brooms.
  11. Avoid sharing phones, tablets, and other work equipment when possible. Thoroughly disinfect the front desk and any handheld devices provided to employees for their shift.
  12. Equip workstations and help counters with hand sanitizer.
  13. Remove reusable informational items from guest rooms such as magazines, menus, coupons, etc. Critical information should be electronically posted.
  14. Leave rooms unoccupied for 24-72 hours between guest stays.
  15. Close break rooms if employees are unable to socially distance.
  16. Stagger employee arrival times and breaks to minimize traffic volume.
  17. Require employees to avoid physical touching, such as handshakes, hugs, etc.
  18. Limit the number of individuals riding in an elevator using signage.
  19. Keep saunas, steam rooms, and hot tubs closed.
  20. Follow the CDC’s additional guidelines for visitor use of swimming pools.

Stokes Wagner will continue to monitor changes to COVID-19 public health guidance and keep you updated on the developments. For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.